Prince Adelusi Busuyi V. Commissioner of Police (2016)

LawGlobal-Hub Lead Judgment Report

FATIMA OMORO AKINBAMI, J.C.A. 

 This is an appeal against the Judgment of the Ekiti State High Court, Ijero-Ekiti Division (hereinafter referred to as the lower Court), sitting in its appellate jurisdiction, delivered by M.A. Agbelusi, J., on 8th November, 2013 in Suit No. HIJ/2CA/2013.

The brief background facts of this appeal are that, the appellant was charged with the offence of conducting himself in a manner likely to cause breach of peace, contrary to Section 249(d) of the Criminal Code Cap. 30 Vol. II Laws of Ondo State of Nigeria, 1978 as applicable in Ekiti State then.

Appellant was arraigned before the Senior Magistrate Grade II, Aramoko-Ekiti on a one count charge. During the trial of the appellant for the offence before the Chief Magistrate Court, the Respondent called six (6) witnesses and the appellant testified for himself in his own defence, and called two other witnesses and during the course of trial a number of exhibits were tendered by both the appellant and Respondent, and admitted by the trial Magistrate Court in proof and in refutation of the offence against the

1

appellant. At the close of both parties? cases, both the appellant and the respondent?s counsel addressed the Court and the learned trial Magistrate delivered his judgment on the 30th day of January, 2013, wherein the appellant was convicted of the offence as charged and was sentenced to one month imprisonment, with an option of fine of N5,000:00 and to also enter a bond in the sum of N250,000:00 with a surety to maintain peace for 12 months from the date of judgment.

The appellant appealed to the lower Court against that decision vide a notice of appeal dated 28th day of February, 2013, and filed on the 11th day of March, 2013 upon four (4) grounds of appeal. Learned counsel for both parties addressed the lower Court in support of and against the appeal.

In his considered judgment delivered on 28th of November, 2013 the learned trial Judge sitting at Ijero-Ekiti in its appellate capacity held: –
?The Counsel argued and I agree with him that in this case, Police had no opportunity to investigate the defence of alibi. Counsel urged me to resolve this issue and hold that the defence of alibi lack merit. The presence of the

2

accused was fixed at the scene of the crime. This was done by the evidence of PW iii, iv, and v. They even pleaded with him not to pad-lock the gate with their evidence, the prosecution had demolished the defence of alibi?
On the 3rd issue, none reliance on Exhibit D. This in no way affected the judgment of the Court below and the accused suffered no injustice…
In summation, the appeal lacks merit and it is hereby dismissed. For one thing the statement of PW iii, iv and v that the Counsel of the Appellant so much happed upon was not used in the lower Court to arrive at his decision. For another the lower Court based its decision on eye-witness account. I have demonstrated all these in the course of this Judgment and need not go over it again. I therefore dismiss this appeal as lacking in merit.? The conviction of appellant was affirmed.
?
Being dissatisfied with the Judgment, the appellant lodged an appeal against the same by a Notice of Appeal dated and filed 4th day of December, 2013 upon ten (10) grounds of appeal. The grounds of appeal shorn

3

particulars of error are: –
GROUND ONE
(1) That the learned trial Judge committed a grave error in law when it upheld the decision/judgment of the Chief Magistrate Court, Aramoko-Ekiti, Ekiti State as contained in the judgment of Chief Magistrate P.I. Ayenimo, Chief Magistrate Grade I, dated 30th January, 2013 when prosecution failed in all respects to prove the guilt and charges against the Appellant beyond reasonable doubt.
GROUND TWO
(2) The learned trial judge committed a grave error in law when it relied upon the testimonies and extra judicial statements of the third, fourth and fifth prosecution witnesses which were made to the Police ten (10) months (August, 2011) after the arraignment of the convict/Appellant and several months after trial had began.
GROUND THREE
(3) The learned trial Judge erred in law when it upheld the judgment of the said Chief Magistrate Court and also convicted the appellant inspite of the material contradictions and discrepancies in the evidence of the prosecution witnesses.
GROUND FOUR
(a) The learned judge erred in law when it upheld the judgment of the Chief Magistrate sitting at

4

Aramoko Ekiti, Ekiti State by refusing and failing to attach any evidential value to exhibit ?D?.
GROUND FIVE
The learned trial Judge erred in law when it wrongfully evaluated the evidence on record and thereby arrived at the perverse decision that the appellant was the person who padlocked the palace gate.
GROUND SIX
The learned trial Judge erred in law when it failed to thoroughly evaluate and consider the defence of alibi raised by the appellant.
GROUND SEVEN
The learned judge erred in law when he relied upon inadmissible, uncorroborated, hearsay evidence on record and mere suspicion in reaching the conclusion that the appellant was guilty of the alleged offence and thereby occasioned a miscarriage of justice.
GROUND EIGHT
The learned trial judge erred in law when it proceeded with the appeal and gave judgment in respect of same despite the strong allegation of bias raised against him in the two letters/complaints written against the presiding judge, Hon. Justice M.A Agbelusi of likelihoods of bias in the handling and determination of the appeal before him, addressed to the Hon. Chief Judge of Ekiti